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Ramesh Chandra Bhardwaj v. Syndicate Bank And Othes - WRIT - A No. 40405 of 2004  RD-AH 598 (9 January 2006)
vv Judgment reserved on 25.11.2005
Judgment ready on 26.11.2005
Judgment delivered on 9.1.2006
Civil Misc. Writ Petition No. 40405 of 2004
Ramesh Chandra Bharadwaj.. Petitioner
Syndicate Bank, Head Office
Manipal-576119 through its
Chairman and others.... Respondents
Counsel for the petitioner:- Sri Ashok Khare,Senior Advoate and
Sri V.D. Chauhan,Advocate
Counsel for the respondents:- Sri P.K. Singhal, Advocate and the Standing
Hon'ble Rakesh Tiwari,J.
Heard counsel for the parties and perused the record.
The petitioner has challenged the order dated 10.12.2002 passed by the Deputy General Manager, Syndicate Bank, Zonal Office, Meerut (Annexure-14 to the writ petition) as well as the order dated 11.10.2003 passed by the General Manager (Personnel), Syndicate Bank, Manipal (Annexure-17 to the writ petition).
Sri P.K. Singhal, counsel appearing for the respondents-bank has raised a preliminary objection that the writ petition is not maintainable on ground of alternative remedy available to the petitioner under the Industrial Disputes Act, 1947.
Sri Ashok Khare, learned counsel for the petitioner in rebuttal submits that no factual controversy is required to be decided in this petition and that the arguments of the parties are based on record, hence alternative remedy is no bar. Counter and rejoinder affidavits have been exchanged. The controversy in the writ petition is to be decided on basis of enquiry proceedings on record. Since the matter is being decided on merits on the basis of admitted records, the preliminary objection of the respondents for relegating the case to Industrial forum need not be resorted to.
The petitioner was charged with the following charges:
" (1) Gross misconduct of "Remaining unauthorized absent" without intimation continuously for a period exceeding 30 days as per clause No. 19.5(P) of Bipartite of Bipartite Settlement for the period 27.8.2001 to 9.3.2002.
(2) Minor misconduct of "Irregular Attendance" as provided in clause No. 19.7(b) of Bipartite Settlement."
Enquiry was conducted by the bank in the aforesaid charges.
By order dated 10.12.2002 the Deputy General Manager of the Bank has directed compulsory retirement of the petitioner from service and by order dated 11.10.2003, the General Manager (Personnel) of the Bank has rejected the appeal filed by the petitioner against the aforesaid order of compulsory retirement.
The petitioner was in employment of the respondents bank since 1.7.1976 as class IV employee. He was charge sheeted vide charge sheet dated 5.4.2002 for unauthorized absence from duty for a period of 198 days between 20.8.2001 to 22.8.2001, 27.8.2001 to 15.1.2002 and 16.1.2002 to 9.3.2002.
The counsel for the petitioner submits that the petitioner denied the allegations in the enquiry proceedings and has placed reliance upon the enquiry report appended to the counter affidavit as Annexure-CA-1.From its perusal it is apparent that the enquiry report is based on the assumption that the petitioner had admitted the charges in the inquiry which are said to be conclusively proved. This assumption according to the counsel for the petitioner is totally based on misreading of the record. It is urged by the counsel for the petitioner that in the inquiry proceedings on 2.8.2002 the petitioner had categorically denied the charges in reply to question no. 2 stating " I deny in toto the charges levelled against me vide charge sheet dated 5.4.2002 and have defence to make."
He further submits that the petitioner was suffering continued ill health, which was beyond his control and had informed his superior officers about this fact and consequential absence either verbally or in writing. According to the learned counsel for the petitioner there was no admission by the petitioner that his absence from duty was unauthorized. It is stated that absence of an employee from duty on account of circumstances beyond his control cannot be termed to be misconduct of unauthorized absence from duty. In this regard the counsel for the petitioner has placed reliance upon 1994 Supp (3) SCC-775 Union of India Vs. Giriraj Sharma.
It is urged on the basis of the aforesaid statement that the Enquiry Officer has wrongly concluded that no further enquiry was necessary in view of voluntarily admission of the charge of misconduct by the petitioner. It is submitted that the said charge of misconduct was wrongly treated to be proved against him by the Enquiry Officer, hence the penalty of compulsory retirement by the impugned order dated 10.12.2002 and confirmed by the appellate authority vide order dated 11.10.2003 is based on a perverse inference and is liable to be quashed.
He has also relied upon the enquiry proceedings dated 27.8.2002 and submits that in view of the voluntary admission of the petitioner further departmental proceedings were dispensed with. The counsel for the respondents again submits that the petitioner neither filed any documentary evidence or produced any witness in the enquiry proceedings in support of his case and that the findings recorded and the punishment order passed by the disciplinary authority are based on material evidence available on record and are not arbitrary or illegal as alleged.
It is urged by the counsel for the respondents that the punishment order dated 23.8.2000 is proper, proportionate to the charges and in accordance with law as the petitioner had also been warned on earlier two occasions for unauthorized absence. In support of this contention he has placed reliance upon the averments made in paragraph 23 of the counter affidavit, which he submits, have not been denied in the rejoinder affidavit. He urged that the petitioner is not fit person to be kept in the service of the bank as he is "habitual absentee" and his conduct is irrcorrigible as inspite of being warned on two earlier occasions for same misconduct he did not improve himself and yet again remained continuously absent for more than 6 months. It is stated that in these circumstances he cannot be trusted for the services in a financial institution like the bank as he lacks sincerity and with devotion to duty. It is lastly submitted that and continued ill health is a valid ground for retrenchment under the Industrial Disputes Act, 1947 and no case for interference in the impugned order has been made out by the respondents.
I have considered the rival submissions of the counsel for the parties. Since the counsel for the petitioner as well as the counsel for the respondents have placed reliance upon the enquiry proceedings in support of their case, the extract of the enquiry proceedings relied upon by them dated 27.8.2002 is quoted below for further appreciation of their contentions:-
"D. That in the enquiry proceedings dated 27.8.2002 when the management was going to lead evidence the defence representative made the following submissions-
"At this stage, E.O. directed MR to lead his evidence.
At this state, DR submitted that he requests the EO to peruse and consider the following submissions in the matter of present departmental enquiry.
(1) No doubt, the total number of days/dates the CSE remained absent is well supported with the evidence, hence not denied.
(2) The absence of the CSE was because of prolonged ill health beyond the control of him.
(3) At times, the CSE failed to inform the branch with regard to his absence, although he ought not to be, but since CSE is an attender, may not be well acquainted with the leave rules.
(4) Since on account of his absence, the salary as well as postponement of annual increment have already been resorted to by the competent authority, any further punishment would amount to dual punishment for single misconduct.
In the light of the above submissions, may I humbly request this August forum to condone the unauthorized absence, non-submission/delay submissions of leave applications. I further would like to request your honour to take a lenient view in the matter since on account of absence, Bank has already recovered salary and postponed increments causing serious financial set back to the CSE apart from incurring substantial amount on his illness and to meet the needs of the family. Here it is pertinent to mention that CSE is the only earning member in the family and pray for lenient view in this regard.
At this state, keeping in view the submissions made by DR for and on behalf of Sri Ramesh Chand Bhardwaj, CSE, E.O. put the following questions to the CSE.
Q.1. ( E.O.tp CSE)- Do you agree that the documents produced as evidence by the Management and taken on record as MEX-01 to MEX-21 reveal the fact that you had been absent from your duties for 198 days as mentioned in the charge sheet no. ZOL-M.IRC/CGS(W)-07/2002 dated 5.4.2002 ?
Ans. (CSE to EO)-Yes. I agree.
Q.2. ( E.O.tp CSE)- Do you agree that the absence as referred in Q.no.1 above has been treated as unauthorized by the Bank as per leave rules?
Ans. (CSE to EO)-Yes. I agree.
Q.3. ( E.O.tp CSE)- Do you voluntarily admit that you have remained absent unauthorizedly for a period of 198 days as stated in the cited charge sheet as well as you have been irregular in attending the branch ?
Ans. (CSE to EO)- I voluntarily admit that I could not attend the branch duties for the period stated in the charge sheet ref. No. ZOL-M.IRC/CGS(W)-07/2002 dated 5.4.2002.
Q.4. ( E.O.tp CSE)- Do you have anything else to say for the circumstances appearing against you as narrated in the cited charge sheet ?
Ans. (CSE to EO)- I wish to submit that my absence was due to the reasons beyond my control, which are well explained by my defence representative in the aforesaid submissions made today and I request you to dispense with further departmental enquiry and view the matter leniently in view of my true honest admission in this regard, I will put my all efforts to be regular in my attendance in future.
Recorded by me. Read, Head and Admitted to be
True and correct.
Enquiry Officer CSE, Ramesh Chandra Bhardwaj,
At this stage, EO requested the DR to please inform whether he intends to contest the instant case in view of the voluntary admission by the CSE as recorded above. DR, in turn, submitted that in view of the facts that the CSE has not absented himself intentionally but was absent from duties due to forced circumstances and as he has voluntarily admitted the same, it will not be appropriate to further contest the case for and on behalf of CSE."
It is evident from the aforesaid extract of enquiry proceedings that the admitted case of the employee was that the petitioner had remained absent for the number of days as charged, which was well supported with evidence". The reason for absence given by the employee was "prolonged ill health" beyond his control. It is established from records that the employee had "at times failed to inform the Branch Manager with regard to his absence. The reason given by the workman in this regard is that he being an attender may not have been well acquainted with leave rules does not inspire confidence as in the past also he had been warned twice earlier and should have known about the rules for leave/absence.
It is also admitted fact that on account of absence the salary of the petitioner as well as annual increment had already been resorted to by the employer and that a request was made by the defence representative in these circumstances for a lenient view in the matter and condone the unauthorized absence/non-submission and delay in submission of applications for leave. From enquiry proceedings dated 27.8.2002 it is apparent that though the total number of days on which the petitioner was absent was not denied. Explanation for the absence of the petitioner that it was because of prolonged ill health due to reason beyond his control. The petitioner had also been warned twice earlier for remaining on unauthorized absence without leave and had been left of with warning. His conduct remained irrcorrigible and he committed the same misconduct again. The defence in these circumstances that he may not be acquainted with leave rules does not inspire confidence.
For the reasons stated above, no grounds have been made out for interference in the orders impugned. The writ petition fails and is accordingly dismissed.
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